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TIPSHEET: Vanderbilt experts give insight on Judge Sonia Sotomayor’s Supreme Court nomination; Video included

Jun. 25, 2009, 11:48 AM

[Media note: Vanderbilt has a 24/7 video and audio studio with a dedicated fiber optic line and a radio ISDN line. Use of the TV studio with Vanderbilt experts is free, except for reserving fiber time.]

Tracey George is a professor of law and political science. She’s done extensive empirical research on the Supreme Court and the federal courts, including the behavior of federal judges and courts. Most recently, she’s researched why the Supreme Court might be more effective as three-justice panels. She’s recently done interviews on the Supreme Court with CNN.com, the New York Times, Newsweek, U.S. News & World Report and Vogue.

Why there’s so much controversy surrounding justices being “political.”

“I think the idea that the Supreme Court is independent of the political process, that they bring neutrality to their decision-making, is viewed as highly important because it makes us believe that their decisions are somewhat different than the decisions of the other political branches …but the reality, of course, is that there’s no way for anybody who makes those sorts of decisions to be insensitive to the impact of their decisions on the political process…there’s no way to keep them above the fray, they’re very much a part of it.”

Watch Video: George’s full answer on justices being political and why people may not want justices to be political.
Download high-resolution image of George.

How Sotomayor’s characteristics, such as race and gender, could impact the nomination process and why she’s a “safe” candidate.

“Her gender and race certainly make it a more interesting nomination because they will prompt discussion from a wider segment of the population than might otherwise be interested in a Supreme Court nomination. That said, I think that’s part of what makes the nomination safe. It makes the nomination a move that strengthens President Obama’s political base and potentially expands it.”

Watch video: George’s full answer on Sotomayor being “safe;” and hear why there have been vocal complaints against Sotomayor.

Why Obama could have a bigger influence through the lower federal courts. (Right now there are 70 open seats.)

“For most of us, the court of last resort is not the U.S. Supreme Court, but the three judges who sit in panels on the courts of appeals; the court on which Judge Sotomayor currently serves. 35-thousand cases are decided in that court every year compared to some 70 in the U.S. Supreme Court. We should care about the judges appointed to those courts, the law and policy they set. And that’s [Obama’s] opportunity for influence. Unfortunately for President Obama, he’s not had much luck so far…”

Watch video: George’s full answer on how to pick the best candidate and hear why he hasn’t gotten a federal judge approved so far.

The best way to choose a Supreme Court nominee and who George thinks would be the most ideal candidate.

“Instead of thinking of it on a candidate-by-candidate basis, we should think of it as a group of nine. It’s a portfolio of justices. We want different perspectives, different experiences brought to the court. So let’s not think of this person in isolation from the other people that are already on the bench. That’s when we’ll get more of the range of outcomes that would reflect the perspectives, experience, ideas that we have in this society…”

“I guess if I had to think of the ideal candidate for President Obama to nominate down the road, it would be President Obama…”

Watch video: George’s full answer and hear her ideal characteristics for a justice.

Terry Maroney is an assistant professor of law, specializing in Supreme Court decision-making, law and emotion, race and gender in law, and criminal and juvenile justice. She most recently wrote an article on “Emotional Common Sense as Constitutional Law,” which will be published in the Vanderbilt Law Review (forthcoming, 2009).

The role of empathy in the Supreme Court.

“I think empathy plays a very important role in a court because judges are asked to make decisions that affect people. And very frequently the law actually requires judges to put themselves in the shoes of another person… a judge has to have the capacity to imagine the emotional life of another person…”

Why there’s been so much controversy tied to Sotomayor admitting that she’s empathetic.

“I think [Judge Sotomayor] has broken the fourth wall in a way; she’s talking about something that people prefer to leave unsaid. Because people, for a variety of reasons, like the image of judges as somehow impartial umpires who call balls and strikes. Now I’ve actually always been interested how umpires would think of the analogy because umpiring requires judgment… it’s not as objective as some people would like it to be…”

Watch video: Maroney’s full answer about the Sotomayor controversy and specific examples of cases where judges have been legally tied to use empathy.
Download high-resolution image of Maroney.

Why a trial judge is needed on the Supreme Court.

“Sotomayor’s experience as a trial judge is something she brings that nobody else was bringing. It’s very important because the Supreme Court often issues pronouncements that trial judges then have to implement. The Court has often been criticized because they issue standards that are actually very difficult to put into practice… I think that someone who actually knows how trials work will do a better job of helping the Court come to conclusions that can be more readily implemented on a practical level…”

Watch video: Maroney’s full answer about trial judges needed on the Supreme Court and hear specific examples of difficult-to-follow court rulings.

Value of Sotomayor being Latina.

“It sends a strong message that Latinos are an important part of this country. It sends a message that Latinas can achieve as high of a goal as you can imagine, being a Supreme Court justice. But that’s not enough. The most important thing is that the experience of being a racial minority in a country where race matters, gives you a very unique perspective on social issues…there may be cases where someone with her perspective would notice something that someone with Justice Roberts’ background would not notice. It doesn’t mean there’s something wrong with Justice Roberts, it just means he has a different experience and he’s not going to see certain things…”

Watch video: Maroney’s full answer on the value of Sotomayor being Latina why race matters among judges.

Brian Fitzpatrick is an assistant professor of law and researches judicial politics and judicial selection and is an expert on the Senate confirmation process. He served as a law clerk to Justice Antonin Scalia in 2001-2002 and as a Special Counsel for Supreme Court Nominations to Senator John Cornyn in 2005-2006.

Why Supreme Court justices should be considered lawmakers.

“We sometimes have a popular conception of the law as being something where you just go to a bookshelf and pull off a book and there’s the answer to what the law is– but that’s just not right. If you read the constitution it’s very vague, it’s very ambiguous. The Bill of Rights is basically a political document and much of what’s in the Constitution is just political platitudes and doesn’t say much. The devil is in the details and the details are not in the Constitution. The details are things that have to be worked out by judges. That gives judges a lot of power to basically make law…”

Watch video: To see Fitzpatrick’s full answer and hear how he uses the abortion debate as an example of why justices are lawmakers.
Download high-resolution image of Fitzpatrick.

Why Sotomayor and other Supreme Court nominees should have to give their opinions on hot button issues during Senate confirmation hearings.

“Nominees often refuse to answer questions on the ground that they should not “prejudge” future cases. But Judge Sotomayor can be asked what her present inclinations are without being asked to promise to vote a certain way in the future…It would be naïve to think that Judge Sotomayor has not already in some sense “prejudged” future cases…”

“…I think it’s a mistake to let these very important lawmakers who are going to have the final word on so many issues in this country—I think it’s a mistake to let them go onto the bench for 20, 30, 40 years and have no idea what types of laws they’re going to make for the American people. I think that’s akin to playing roulette with our most important public policies…”

Watch video: Fitzpatrick’s full answer on why he thinks it’s ridiculous to not know what judicial candidates’ opinions are

Benefit of Sotomayor having been a district court judge.

“District court judges are in the trenches with litigation in this country. They see the huge volume of litigation and how it’s increased over time, they’ve witnessed it first-hand. They know the perils of discovery and what it means to corporate defendants, how expensive and contentious it can be. So I think a district court judge is attuned to a lot of ‘in the trenches’ litigation questions that frankly the current justices don’t have experience with.”

Watch video: Fitzpatrick’s full answer on Sotomayor’s experience as a district court judge.

Media Contact: Amy Wolf, (615) 322-NEWS
amy.wolf@vanderbilt.edu

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